Deportation Defense – AKA Cancellation of Removal

Serving Austin’s Immigrant Community

Facing deportation is a complicated, stressful situation for anyone. That’s just one reason it’s so important to find knowledgeable, helpful, bilingual immigration lawyers to step up and represent you in your time of need. The Austin Law Offices of Peek Toland & Castañeda PLLC offer expert counseling and guidance in immigration law.

If you or someone you love may face deportation or removal proceedings, then you should consider seeking an attorney who is knowledgeable in this field. Seeking an immigration attorney is the ideal solution for canceling deportation. An experienced lawyer will help to direct and guide you through all of your options. When an individual is facing deportation, her or his options will immediately become limited. This is why it is necessary that you find an experienced attorney who knows how to help you with your cancellation of deportation.

Here at Peek Toland & Castañeda PLLC, we will work hard to determine exactly any possible eligibility regarding cancellation of deportation. We will also break the complete procedure down for you and your love ones in order to make it easier for you. We will also help you through all of the filing and paperwork, and aid you in preparation for your application so that you have the best possible chances of winning your deportation case. To speak with one of our experienced Austin immigration lawyers, contact our offices and we will be more than willing to help. It’s time to stop hesitating.

How to Appeal Deportation: 2 Ways

There are two methods for an immigrant to appeal deportation, by showing that she or he deserves cancellation of deportation using an application for cancellation of deportation.

The first option is a traditional cancellation of removal/deportation for a non-permanent resident.

The second choice is cancellation for an abused and non-permanent immigrant.

Success Stories: Cancellation of Removal

Client is a legal permanent resident who was arrested for a DWI. Client had several prior convictions for burglary of a vehicle and possession of drug paraphernalia. Client has a family in the U.S., including a pregnant wife and two other children from a previous relationship in which he has custody. Our Criminal Defense team was able to help Client plead out his DWI charge, so he was still eligible for Cancellation of Removal. Then Peek Toland & Castañeda PLLC’s immigration team stepped in arguing before the immigration judge that Client’s prior convictions were not sufficient crimes of moral turpitude to preclude Client from relief. The judge agreed and cancelled Client’s removal proceedings allowing him to stay with his family in the U.S.

Client is an undocumented person who was arrested for assault. Client’s wife is a U.S. citizen and his three children are all U.S. citizens. Client’s wife is chronically ill and disabled. Peek Toland & Castañeda PLLC’s immigration team was able to argue that Client should be able to stay in the U.S. since he was married to a U.S. citizen and had three dependent U.S. citizen children, all of whom would suffer extreme hardship if Client was deported. The judge agreed and Client became a legal permanent resident and won his cancellation of removal hearing.

Client had lived here most his life but had some criminal infractions which made him deportable. We argued to the judge the equities he had here in the U.S., and put on evidence and testimony of his good character and value to the community and the Judge sided with us and granted us the victory and awarded our client by cancelling his deportation. Great win that allows a client to avoid being deported to a country which he hasn’t known since he was a baby, that is today a very violent a dangerous place, and more importantly reunifying him with his family and letting them stay together here in the U.S.!

Cancelling Deportation for Non-Permanent Residents

He or she maintained continuous physical presence in the U.S. for 10 years or more prior to the Notice to Appear,

He or she is a person of good moral character,

He or she has not been convicted of an offense under section 212(a)(2), 237(a)(2), or 237(a)(3) of the INA, and

One of the following would result:

His or her removal would result in exceptional and extremely unusual hardship to the immigrant’s U.S. or lawful permanent resident spouse, parent, or child and thus he or she is deserving of favorable exercise of discretion.

Continuous Physical Presence

To qualify for cancellation of removal, an alien must show he or she has continuous physical presence for at least 10 years or more. The period of physical presence commences when the immigrant first physically enters the U.S. either legally or illegally. The period of physical presence ends when one of the following occurs:

The immigrant is charged and placed in deportation or removal proceedings,

The immigrant commits an offense either inadmissible or removable, or

The immigrant leaves the U.S. for a period of more than 90 days consecutively or 180 days aggregately.

Good Moral Character

To be eligible for cancellation of removal, an immigrant must show he or she is a person of good moral character. There is no ideal definition for “good moral character”, however the law does provide a definition for what does not qualify as good moral character.

The law states the following individuals are not persons of good moral character:

Habitual Drunkards

Prostitutes or Individuals involved in Commercialized Vice,

Individuals who have been convicted or, or admitted to the commission of, a crime involving moral turpitude,

Individuals with multiple criminal convictions,

Individuals who have been convicted of, or admitted of commission of, crimes related to controlled substances,

Controlled substance traffickers,

Smugglers,

Individuals whose income is primarily derived from illegal gambling and individuals convicted of two or more gambling offenses,

Anyone who has given false testimony to obtain an immigrant benefits,

Anyone who has been confined to a penal institution for 180 days or more in the aggregate, and

Anyone convicted of an aggravated felony under INA §101(a)(43).

Please note: This list is not comprehensive of individuals who are not persons of good moral character according to immigration law.

Additionally, any individuals convicted of an aggravated felony under INA §101(a)(43) is barred from establishing good moral character if the felony conviction occurred on or after November 29, 1990.

The following individuals are barred forever from establishing good moral character for the purpose of cancellation of removal:

An individual convicted of murder,

An individual who gave false testimony during an asylum interview,

An individual who assisted in illegally smuggling a spouse and/or child into the U.S,

An individual who was incarcerated in county jail for a period of 365 days or more,

An individual convicted of terroristic threats, and

An individual who has been ordered removed from the U.S. and seeks admission within 5 years of the date of removal.

Convicted Offenses under INA §§ 212(a)(2), 237(a)(2), or 237(a)(3)

Those who are convicted for offenses under INA §§212(a)(2), 237(a)(2), or 237(a)(3) are ineligible for cancellation of removal. The following offense convictions fall under this rule:

Crimes related to moral turpitude,

Controlled substance violations,

Prostitution or a commercialized vice,

Firearms offenses,

Domestic violence offenses,

Document fraud,

Falsification of documents, or

Failure to register with the government.

Exceptional and Extremely Unusual Hardship

To be eligible for cancellation of removal, the applicant must show his or her removal would result in exceptional and extremely unusual hardship to the applicant’s U.S. citizen or legal permanent resident spouse, parent or child. Extreme Hardship is determined by the age of the individual, the family ties in the U.S. and abroad, the length of residence in the U.S., condition of health, conditions in the country to which the alien was returnable, economic and political conditions in the applicant’s native country, financial status including business and occupational ties, the possibility of other means of adjustment of status, position in the community, community ties, and an individual’s immigration history.

The BIA in 2001 defined “exceptional and extremely unusual” hardship as truly exceptional, but not unconscionable hardship. In other words, the hardship an individual faces must be substantially beyond that which ordinarily would be expected to result from deportation. Overall, generally lower living standards were insufficient to supporting a finding of exceptionally an extremely unusual hardship.

If you or your family member is facing removal proceedings, please contact our office to speak with an experienced immigration attorney about your options.

Cancelling Deportation for Non-Permanent Abused Immigrants

Who Qualifies

An immigrant who has been battered or subjected to extreme cruelty into the U.S. by his or her U.S. citizen or lawful permanent resident spouse or parent.

An immigrant who is a parent of a child of a U.S. citizen or lawful permanent resident and the child has been battered or subjected to extreme cruelty under the U.S. by the U.S. citizen or lawful resident parent.

Physical Presence

The immigrant maintained continuous physical presence in the U.S. for 3 or more years prior to the Notice to Appear.

Good Moral Character Requirement

The immigrant has been a person of good moral character.

No Aggravated Felony Convictions

The immigrant has not been convicted of an aggravated felony.

Not Inadmissible or Deportable

The immigrant inadmissible under section 212(a)(2) or 212(a)(3) of the INA, and he or she is not deportable under section 237(a)(1)(G) or section 237(a)(2)-(4) of the INA.

Deserving of Favorable Exercise of Discretion

The immigrant is deserving of favorable exercise of discretion on his or her application.

Extreme Hardship

The immigrant’s removal would result in extreme hardship to him or herself or his or her child who is the child of a U.S. citizen or lawful permanent resident.

The immigrant is a child whose removal would result in extreme hardship to him or herself or his or her parent.

Battery or Extreme Cruelty

To be eligible for cancellation of removal for a non-permanent abused immigrant, one must show he or she was battered or suffered extreme cruelty or his or her child was batted or suffered extreme cruelty by a U.S. Citizen or lawful permanent resident. A battery or extreme cruelty includes, but is not limited to:

Acts of violence,

Forced detention resulting in physical or mental injury,

Threats of physical or mental injury,

Psychological abuse, and

Sexual abuse.

Extreme Hardship

One of the elements for showing cancellation of removal for a non-permanent abused immigrant is extreme hardship. The age of the applicant, the length of residence in the U.S., family ties in the U.S. and abroad, health of the applicant and qualifying relatives, financial status, occupation of the applicant, ties to the community, economic and political conditions in the native country, immigration history, and the applicant’s position in the community are all factors used to determine extreme hardship.

In determining extreme hardship, the immigration judge may also consider the following:

Major extent of the physical and psychological consequences of abuse,

The effect of loss of access to the U.S. courts and criminal justice system including the ability to obtain and enforce a protection order,

The possibility that the batterer’s friends and family or other connected to the batterer in the home country could physically and psychologically harm the applicant,

The applicant’s needs, or those of the applicant’s children, for social, medical, mental health, or other supportive services that may be required as a result of the domestic violence and that are unavailable or not accessible in the home country,

The existence of laws and social practices in the home country that punish the applicant because he or she has been a victim of domestic violence or has taken steps to leave an abusive situation,

The abuser’s ability to travel to the home country, and

The willingness or ability of the authorities to protect the applicant in the home country.

He or she is not inadmissible under section 212(a)(2) or 212(a)(3) of the INA,

He or she is not deportable under section 237(a)(1)(G) or section 237(a)(2)-(4) of the INA,

Inadmissible Crimes and Deportable Offenses

To qualify for cancellations of removal for a non-permanent abused immigrant, an individual must show he or she has not committed an inadmissible crime or a deportable offense.

Inadmissible crimes include crimes of moral turpitude, controlled substance violations, or prostitution. While, deportable offenses include offenses that affect the following types of individuals:

Those who have been involved in marriage fraud,

Those convicted of crimes of moral turpitude,

Those convicted of aggravated felonies,

Those engaged in high speed flight from immigration checkpoints,

Those convicted of controlled substance violations,

Those who are drug abusers and addicts,

Those convicted of firearm offenses,

Those convicted of domestic abuse, stalking or child abuse,

Those who have violated portions of protected orders that were meant to protect against threats of violence or bodily injury,

Those who are deportable for failing to report to the government, and

Those who are removable for document fraud.

If you or your family member is facing removal proceedings or facing deportation, please contact our office to speak with an experienced immigration attorney about your options.

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